In a personal injury case, a defendant may attempt to use what is called the “open and obvious” rule as a defense. The “open and obvious” rule is an exception to premises liability law, which can be utilized as a defense by a property owner in order to explain why they should not be held liable for injuries that were a result of a fall on their property.
In order to determine whether the open and obvious rule will apply in a case is a question best assessed by an experienced attorney. Premises liability laws can be complicated and a lawyer who is familiar with these laws and limitations can ensure the best result. If you have been involved in a fall or accident, speak to an attorney at Silva Injury Law who can assess your case and represent your rights.
APPLICATION OF THE OPEN AND OBVIOUS RULE
Property owners have a responsibility to visitors on their property to keep the area safe and free of hazardous conditions. Often property owners are held liable when injury results from their failure to keep conditions safe or to warn of such conditions. The open and obvious rule, however, provides a defense for property owners when the injury results from a clearly dangerous condition. Essentially, visitors are expected to exercise their discretion when they are faced with an obvious and apparent danger.
The Court in California has explained that “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or wan of the condition.” (Jacobs v. Coldwell Banker Residential Brokerage Company (2017) 14 Cal.App.5th 438.)
Generally, whether or not a dangerous condition is considered to be open and obvious is determined based on the standard of a “reasonable person.” This means that if a certain hazard would be apparent to a reasonable person in the same position, the rule may apply. The standard will be adjusted when the encounter between the injured party and the condition is unusual, such as the injured being of young age.
A defendant who seeks to use the open and obvious rule to show they did not owe a duty of care to the injured plaintiff must show that foreseeability and reasonableness support the application of the rule.
The inquiry into whether or not a plaintiff will succeed in an injury claim, and whether a defendant’s open and obvious defense will succeed are fact intensive. Experts play a significant role in determining whether or not the condition was open and obvious, and whether or not the defendant had a duty to remedy the danger.
California Courts also may present the issue of whether a defect is open and obvious to the jury to determine. When this type of issue is presented to a jury, experts play a vital role.
WHEN IT IS NOT A COMPLETE DEFENSE
California Courts have established that the open and obvious rule is not a complete defense when “it is foreseeable that the danger may cause injury despite the fact that it is obvious.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.) This most frequently applies when necessity requires a person to encounter the dangerous condition.
Additionally, even if a condition is considered open and obvious, this does not always bar recovery for damages.
CONTACT AN ATTORNEY
An attorney is in the best position to assist you in proving your case. If you have been injured on another’s property, speak with an attorney at Silva Injury Law who can protect your rights.